Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction By Eric Biber

INTRODUCTION

Judicial review of agency inaction under § 706(1) of the Administrative Procedure Act (APA) is often doctrinally incoherent and unclear. There is confusion about the proper standard of review and the distinction between agency action and inaction, as well as the full scope of the presumption of unreviewability for agency non-enforcement decisions laid out by the U.S. Supreme Court in Heckler v. Chaney. The result is not just problematic on an abstract level. Judicial review of agency inaction is increasingly important in regulatory fields such as environmental law, as shown by the Supreme Court's recent decision in Massachusetts v. EPA, which rejected the Environmental Protection Agency's (EPA) claim that it lacked jurisdiction to regulate greenhouse gases (GHGs) produced by automobiles. This Article applies a framework that identifies judicial deference to agency resource allocation decisions as a crucial factor in administrative law and uses that framework to bring coherence and clarity to the doctrine of judicial review of agency inaction. In particular, this Article shows that there is no fundamental difference between judicial review of agency inaction or action under the APA. The same underlying principles of administrative law apply in both circumstances, with the level of deference varying depending on the importance that resource allocation plays in the agency's decision. Likewise, a wide range of exceptions to judicial review of agency decisions carved out by the Supreme Court can be properly understood as the result of judicial deference to agency resource allocation.

Administrative law is known for its impenetrability and lack of clarity. But even within administrative law, judicial review of agency inaction stands out for the confusion it causes. Aside from three leading Supreme Court cases -- Heckler, Norton v. Southern Utah Wilderness Association, and Massachusetts v. EPA--the Court provides little guidance on the issue. And the language of those cases --Heckler in particular--leaves the lower courts with little guidance as to the nature of the doctrinal structure they should be applying. Accordingly, a patchwork of cases currently applies different doctrinal schemes, including complex multi-factor balancing tests, and inconsistent standards to ever-shifting categories of law. The result is an impenetrable thicket of legal doctrine that is difficult for judges and practitioners to understand and navigate. This is unfortunate for a range of reasons--and not just for administrative law practitioners involved in cases concerning agency inaction. Agency inaction implicates a sweeping area of administrative law, including an agency's refusal to issue a regulation, an agency's interminable delay in hearing an adjudication, and an agency's mid-stream abandonment of a rulemaking. Moreover, in a number of important fields of regulatory law, agency inaction will only increase in importance as the focal-point for the initiation of regulatory or deregulatory steps shifts from Congress to the agencies. Thus, to the extent that individuals, interest groups, and corporations seek to change the nature and scope of the regulatory system, they will rely on prodding agencies themselves to take the initial steps; and this prodding may require a judicial component. Accordingly, practitioners and courts will increasingly need to analyze and decide questions about whether an agency has properly chosen to act or not.

One important area of regulatory law--environmental law--highlights this dynamic. Congress has not passed much in the way of significant new environmental law statutes since the reauthorization of the Clean Air Act in 1990. There appears to be little prospect of new regulatory statutes in the field in the near future, with the exception of the potential regulation of GHGs to control global climate change. Accordingly, to the extent that new issues or problems are to be tackled by the regulatory state, whether through new regulation or through deregulation, the initiative will lie with agencies, not the legislature. The future development of environmental law will therefore be critically affected by the nature and scope of judicial review of an agency's decision not to take on a new initiative, to abandon an initiative mid-stream, or to pursue it to conclusion.

This point is emphasized by Massachusetts v. EPA, a classic example of judicial review of agency inaction. There, state and environmental plaintiffs challenged the EPA's refusal to issue standards regulating GHG emissions by automobiles under the Clean Air Act. The plaintiffs chose a litigation strategy precisely because of the logjam in Congress about whether and how to address global warming through new legislation. While the Court's ruling for the plaintiffs only means a remand to the Agency to reconsider its refusal to regulate GHGs, the press coverage and political fallout were enormous. And little wonder. Whether the outcome is regulation or a break in the Congressional logjam, the consequences of judicial review of agency inaction in this context could be the imposition of regulatory controls on automobile manufacturing (one of the largest industries in the American economy). Accordingly, judicial review of agency inaction matters, and the question demands more attention than it currently receives.

This Article attempts to clear out the thicket of judicial review of agency inaction by adopting a theoretical framework developed in a companion piece that explains how courts should defer to an agency's allocation of resources among competing priorities. This theoretical framework will be applied in detail to explain, understand, and refine the case law and provide sense and order to the doctrine. In doing so, this Article will argue that, in fact, judicial review of agency inaction is no different from judicial review of agency action in general. The same fundamental underlying principles apply to both types of judicial review. The payoff is a tremendous simplification of the doctrine of judicial review of agency inaction.

This Article begins with a quick overview of the current, confused status of judicial review of agency inaction. Then, Part II provides a brief overview of the theoretical framework for understanding how courts defer to agency resource allocation decisions. Part III applies this framework to show that there is no fundamental distinction between judicial review of agency action and inaction, and that the seemingly anomalous and complex doctrinal tests applied to judicial review of agency inaction are simply the application of general doctrines of administrative law that apply to all judicial review. Part IV will show that various Supreme Court cases immunizing certain types of agency decisions from judicial review are simply extreme examples of judicial deference to agency resource allocation.Finally, Part V concludes by showing the doctrinal benefits of this analysis and briefly explores its implications for an area of law where agency inaction is particularly important-- environmental law.